EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kingarth Lord Reed Lord Malcolm	[2010] CSIH 79 XA183/09 OPINION OF LORD KINGARTH in the appeal by THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND Appellants; against THE SCOTTISH LEGAL COMPLAINTS COMMISSION Respondents: _______

Act: R W J Anderson, Q.C., J A Brown; Balfour + Manson LLP

Alt: Lake, Q.C.; Shepherd & Wedderburn

21 September 2010

[1] This is an appeal by the Council of the Law Society of Scotland ("the appellants"), with leave of the court, under section 21 of the Legal Profession and Legal Aid (Scotland) Act 2007 ("the 2007 Act"), against a decision by The Scottish Legal Complaints Commission ("the respondents"), intimated to the appellants by letter dated 11 November 2009. The specific question raised is whether the respondents erred in law in finding that a complaint made by Glenn McIntosh and Mrs Janet McIntosh, residing at The Sycamores, Duns, Berwickshire ("the complainers") against Mr Alistair Dean, solicitor, of the Alistair Dean Law Practice Limited, 10 Lochside Place, Edinburgh Park, Edinburgh ("the solicitor") was not "totally without merit", within the meaning of section 2(4)(a) of the 2007 Act; a complaint which the appellants thus contend the respondents should have rejected, and should not have remitted to them for investigation. It is the first appeal to have come before this court for determination under the Act. In the circumstances, although the focus in argument was necessarily on the specifics of the complaint, both parties recognised that the appeal could be said to give rise to some broader questions of potentially wider import.

The statutory background

[2] Section 2 of the 2007 Act provides:

"2 Receipt of complaints: preliminary steps

(1) Where the Commission receives a complaint by or on behalf of any of the persons mentioned in subsection (2) -

(a) suggesting -

(i) professional misconduct or unsatisfactory professional conduct by a practitioner other than a firm of solicitors or an incorporated practice;

(ii) that a conveyancing practitioner or an executry practitioner has been convicted of a criminal offence rendering the practitioner no longer a fit and proper person to provide conveyancing services as a conveyancing practitioner or, as the case may be, executry services as an executry practitioner,

(a complaint suggesting any such matter being referred to in this Part as a 'conduct complaint');

(b) suggesting that professional services provided by a practitioner in connection with any matter in which the practitioner has been instructed by a client were inadequate (referred to in this Part as a 'services complaint'),

it must.......take the preliminary steps mentioned in subsection (4).

(2) The persons are -

(a) as respects a conduct complaint, any person

.......

(4) The preliminary steps are -

(a) to determine whether or not the complaint is frivolous, vexatious or totally without merit;

(b) where the Commission determines that the complaint is any or all of these things, to -

(i) reject the complaint;

(ii) give notice in writing to the complainer and the practitioner that it has rejected the complaint as frivolous, vexatious or totally without merit (or two or all of these things)".

[3] Sections 5 and 6 provide:

"5. Determining nature of complaint
(1) Where the Commission proceeds to determine under section 2(4) whether a complaint is frivolous, vexatious or totally without merit and determines that it is none of these things, it must determine whether the complaint constitutes -

(a) a conduct complaint;

(b) a services complaint,

including whether (and if so to what extent) the complaint constitutes separate complaints falling within more than one of these categories and if so which of the categories

........

6. Complaint determined to be conduct complaint

Where, or to the extent that, the Commission determines under section 5(1) that a complaint is a conduct complaint, it must -

(a) remit the complaint to the relevant professional organisation to deal with (and give to the organisation any material which accompanies the conduct complaint);

(b) give notice in writing to the complainer and the practitioner by sending to each of them a copy of the determination and

specifying -

(i) the reasons for the determination;

(ii) that the conduct complaint is being remitted under this section for investigation and determination by the relevant professional organisation;

(iii) the relevant professional organisation to which it is being remitted;

(iv) that the relevant professional organisation is under a duty under this Act to deal with the conduct complaint".

[4] Sections 7 to 14 make provision inter alia for the respondents' duty to investigate and determine services complaints.

[5] Section 17 provides:

"17. Power to examine documents and demand explanations in connection with conduct or services complaints

(1) Where the Commission is satisfied that it is necessary for it to do so for the purposes of section 2, 4, 5, 8, 9, 10 ..... it may give notice in writing in accordance with subsection (2) to the practitioner, the practitioner's firm or, as the case may be, the employing practitioner.

(2) Notice under subsection (1) may require -

(a) the production or delivery to any person appointed by the Commission, at a time and place specified in the notice, of all documents mentioned in subsection (3) which are in the possession or control of the practitioner, the firm or, as the case may be, the employing practitioner and which relate to the matters to which the complaint relates (whether or not they relate also to other matters);

(b) an explanation, within such period being not less than 21 days as the notice specifies, from the practitioner, the firm or, as the case may be, the employing practitioner regarding the matters to which the complaint relates.

......."

[6] Section 21 provides:

"21. Appeal against Commission decisions
(1) Any person mentioned in subsection (2) may, with the leave of the court, appeal against any decision of the Commission under the preceding sections of this Part as respects a complaint on any ground set out in subsection (4).

(2) Those persons are -

(a) the complainer;

(b) the practitioner to whom the complaint relates;

(c) the practitioner's firm;

(d) the employing practitioner;

(e) the relevant professional organisation

.......

(4) The grounds referred to in subsection (1) are -

(a) that the Commission's decision was based on an error of law;

(b) that there has been a procedural impropriety in the conduct of any hearing by the Commission on the complaint

(c) that the Commission has acted irrationally in the exercise of its discretion;

(d) that the Commission's decision was not supported by the facts found to be established by the Commission.

(5) The Commission is to be a party in any proceedings on an appeal under subsection (1).

......."

[7] Section 22 provides:

"22. Appeal: Supplementary provision
(1) On any appeal under section 21(1), the court may make such order as it thinks fit (including an order substituting its own decision for the decision appealed against).

......"

[8] Section 46 provides inter alia:

"'unsatisfactory professional conduct' means, as respects a practitioner who is -........

(d) a solicitor, professional conduct which is not of the standard which could reasonably be expected of a competent and reputable solicitor,

but which does not amount to professional misconduct and which does not comprise merely inadequate professional services; and cognate expressions are to be construed accordingly".

[9] There is no definition in the Act of professional misconduct.

[10] Section 47 of the Act provides:

"47. Conduct complaints: duty of relevant professional organisation to investigate etc.

(1) Where a conduct complaint is remitted to a relevant professional organisation under section 6(a) or 15(5)(a), the organisation must, subject to section 15(1) and (6), investigate it.

(2) After investigating a conduct complaint, the relevant professional organisation must make a written report to the complainer and the practitioner of -

(a) the facts of the matters as found by the organisation;

(b) what action the organisation proposes to take, or has taken, in the matter.

......."

The factual background

[11] On 6 July 2009 the solicitor sent a letter to the complainers in the following terms:

"6/7/2009

Dear Sir and Madam

ALLAN PRYDE

PRYDE HOMES LIMITED

We advise that we act for Allan Pryde, and Pryde Homes Limited. We have recently consulted with Mr Pryde, who has instructed us to write to you as a result of your continuing transgression through his land.

In particular, you are continuing to walk on, and through areas of ground which have now been granted planning permission.

The right to access land owned by others is provided by statute, in terms of the Land Reform (Scotland) Act 2003. Section 6 of that Act sets out various exceptions to the general right to access land. Section 6 of the Act sets out provisions which supplement and supplement section 6. Subsection (3) is in the following terms:

'Where planning permission for such a development or change of use has been granted, the land shall, for the purposes of section 7 above, be regarded, while that development or change of use is taking place in accordance with the permission, as having been developed or having had its use changed accordingly'.

Accordingly, in respect of all areas currently zoned for planning, in respect of which permission has been granted, the right of access does not apply.

Matters have reached a stage now where Mr Pryde is no longer prepared to accept repeated instances of this. If there is a repeat of your accessing the land in question, our client has instructed us to raise court proceedings, in the form of an interdict action, without further notice.

We would also bring to your attention that when exercising access rights, the legislation requires these rights to be exercised responsibly. We have been advised that you continue to walk in the field adjacent to Gardner's Cottage even though the field is planted with crops grown for agricultural purposes (haylage), currently in a late stage of growth and therefore exempt from access rights. 'Section 6(1)(i) of the Act excludes land on which crops have been sown or are growing. "Crop" is defined, for the purposes of the Act in section 7(10), as including, "land on which grass is growing, but only where that grass is being grown for hay and silage and whilst that same grass is at such a late stage in its growth that the exercise of access rights may cause damage to it".

It has been reported to the police that malicious damage has been caused by the cutting of a track from the lower gate through the field to the back of Gardner's Cottage. Our clients advise that you have been using that track with others to visit the property. Continued use of this track or walking across the field must cease immediately to allow the crops to grow.

We are also advised that you and your friends are accessing the field to the north of Chestnut View by walking over septic tanks, drainage pipes and soakaways which are placed on our clients land. The continued walking over this area will cause damage to the tank and drainage and therefore access over this area is prohibited.

Finally, and for the avoidance of doubt, our client is doing no more than enforcing his legitimate rights as a landowner, and availing himself of his statutory remedies.

Our client reserves the right to found upon this letter in any forthcoming court proceedings.

Yours faithfully

(signed)

Solicitor Advocate

Principal

For and on behalf of ADLP Ltd".

[12] The complainers replied by letter dated 28 July 2009. They refuted the statements contained in the solicitor's letter, and inter alia requested clarification about the extent of the area over which planning permission had been granted to Mr Pryde/Pryde Homes. They categorically denied using the track cut into the field to the back of Gardner's Cottage, and, as regards the allegation that they had accessed the field to the north of Chestnut View by walking over septic tanks etc, they said, inter alia, that they believed the solicitor had been "misinformed".

[13] Thereafter on 11 August 2009 they made a complaint to the respondents by completing a pro forma "Complaint Form". In the section headed "What are you complaining about" it was said:

"We have received an overly aggressive, intimidating and threatening letter dated 6^th July 2009 from adlp which was delivered while we were on holiday. In this letter we are accused of a continuing transgression through land allegedly owned by an Allan Pryde, Pryde Homes Limited.

A copy of the letter is attached.

We admit to accessing the field to the north which is owned by a local farmer Mr Miller, via the boundaries of our neighbour's property, in this letter you will see we are accused of causing damage to the septic tank and drainage and that access is prohibited, you will see our response to this in the letter we sent to adlp dated 28 July 2009 to which we have not yet had a reply. We also enclose a copy plan showing exactly where the equipment referred to is situated.

The majority of this letter is based on inaccurate facts and untruths and we think it is an absolute outrage that solicitors are sending this type of correspondence to people.

My wife has shown the letter to Trading Standards who were equally shocked by the content and this has prompted our communication with you".

[14] On 13 August 2009 the respondents acknowledged the completed form, but pointed out inter alia that the complainers should make their complaint known to the solicitor. On 14 August 2009 the complainers duly wrote to the solicitor indicating inter alia that they were "writing to officially complain to you regarding the aggressive approach and content of your letter dated 6 July 2009".

[15] Thereafter the respondents prepared a summary of complaint, which, by letter dated 28 August 2009, they invited the complainers to confirm. This summary, which was signed by the complainers on 15 September 2009 and returned to the respondents, was in the following terms:

"Complainer: Mr & Mrs McIntosh

Complaint ref: 200900525

Practitioner: The Alistair Dean Law Practice

Summary of complaint

What are you complaining about

I wish to complain about the letter sent to me on the 6^th July 2009 by the Alistair Dean Law Practice, specifically

1. This letter was overly aggressive, intimidating and threatening and it appears to be accusing us of continuing transgression through land allegedly owned by Allan Pryde of Pryde Homes Limited.

How this has affected you

1. We are distressed and aggrieved that we have been falsely accused of illegal acts which we have not committed and our character has been defamed.

What you would like to happen to resolve the problem

1. We feel this is unprofessional conduct by this company and we require further advice on what actions to take.

I confirm that this is an accurate and complete summary of my complaint.

......."

[16] By letter dated 17 September 2009 the respondents wrote to the complainers thanking them for their signed statement of complaint, saying inter alia

"The next stage of our complaints process is to assess if we need any further information to support your complaint. This may involve writing to you and/or The Alistair Dean Law Practice to clarify a few points or to provide us copies of any relevant documents".

[17] Thereafter a so-called "Eligibility Summary Sheet" was prepared (it seems by a member of the respondents' "gateway team"). This document contained certain conclusions and recommendations for further action. In the section headed "Recommendations" it was said

"3.2.1 The solicitor has never responded to Mr & Mrs McIntosh. However, the letter he sent to Mr & Mrs McIntosh on 6 July specifically stated that he was acting under the instructions of his clients, Mr Allan Pryde and Pryde Homes Limited. Mr & Mrs McIntosh described the letter as overly aggressive, intimidating and threatening. However, I do not believe this to be the case. The solicitor was detailing the points that he was requested to by his client and stating facts relating to this, this was a standard letter sent out by a solicitor under instruction from his client. The solicitor was acting on behalf of his client and would have been taking his instructions in good faith. I have to consider third party service issues, however, I cannot see how the solicitor has provided a poor service to his client, he was working on instructions from his client and has written the letter based on what his client has asked him to do.

3.2.2 I cannot see any conduct issue here either as the letter that was sent is more or less a standard letter from a solicitor to another party when they are being advised that they are doing something they should not be doing, asking them to desist and what could happen if they carried on doing the same thing. Mr & Mrs McIntosh seem to be aggrieved with what the solicitor has said as this seemed to be different to what was said to them when they bought the property but the solicitor was acting on the instruction from his client. I believe the complaint against the solicitor should be considered to be totally without merit."

[18] Notwithstanding these recommendations, the respondents proceeded thereafter to determine that the complaint should not be rejected on the grounds that it was frivolous, vexatious or totally without merit, and that it should be remitted to the appellants for investigation and determination as a conduct complaint in accordance with section 6 of the Act.

[19] The appellants were informed of the decision by letter dated 11 November 2009. In that letter it was said that the respondents'

"decision is that the issues complained about could amount to conduct matters, if upheld, and on the information available cannot say that it is vexatious, frivolous or totally without merit. The complaint the SLCC has accepted for investigation is summarised on the attached sheet. I have also sent with this letter other documents we were sent to support the complaint".

The attached sheet was (with minor changes of form only) the summary of complaint which had been agreed with the complainers. It was made clear to the appellants that if they wished to challenge the decision they had a right of appeal to the Court of Session.

[20] Although not transmitted with the letter of 11 November 2009, written reasons for the respondents' decision have since been provided to the appellants, in a document headed, inter alia, "Reason for Decision" and "Determination under section 2(4)". We were informed, incidentally, that it is now the practice of the respondents to submit such reasons at the same time as any letter is sent in the form of the letter of 11 November 2009. In the body of the document it is said, at paragraph 2.1:

"2.1 The issue here is simple. Mr and Mrs McIntosh consider that ADLP's letter of 6 July is aggressive, threatening and intimidating. They maintain that it is based on inaccurate facts and untruths and they consider that it is an outrage that solicitors are sending this type of correspondence to members of the public without any apparent attempt having been made to verify the accuracy of what is stated in the letter".

In the section headed "Determination" it is said, inter alia,

"3.3 At this stage of the process the Commission is under no obligation to undertake any investigation into the circumstances giving rise to the complaint. On the basis of the information supplied to it the Commission is simply required to determine whether or not the complaint is worthy of detailed investigation or whether it is to be rejected on the grounds that it is frivolous or vexatious or totally without merit.

3.4 The Commission considers that the letter from ADLP dated 6 July 2009 could, if on detailed investigation it is found that the actings attributed to Mr and Mrs McIntosh did not occur or, if they did, that Mr and Mrs McIntosh were not involved, amount to unprofessional conduct on the part of ADLP. The Commission is concerned that the letter does not admit to the possibility that Mr Pryde may have been mistaken. It gives no opportunity to Mr and Mrs McIntosh to explain their version of events. When Mr and Mrs McIntosh wrote to ADLP on 28 July and again on 14 August, ADLP could have been in no doubt that their clients' version of events had been challenged. They could have apologized to the McIntosh's or they could have restated their clients' position backed up with further evidence, but they did nothing, thereby leaving Mr and Mrs McIntosh in a position where they were extremely distressed and distraught and unsure what Mr Pryde intended to do next. It is alleged that Mrs McIntosh was so stressed that she continually dissolved into tears. She found the whole experience intolerable and wanted to sell the family home.

3.5 The Commission does not consider that a complaint based on inadequate professional services can be sustained in this case. The services were provided by ADLP to Mr Pryde/Pryde Homes and the Commission is satisfied that ADLP were acting on their clients' instructions. They owed a duty to act in the best interests of their clients but no such duty was owed to Mr and Mrs McIntosh with whom ADLP had no contractual relationship. Although Mr and Mrs McIntosh were directly affected by the services provided by ADLP they were not inadequate from the perspective of the clients for whom they were acting".

Discussion

[21] Before turning to the specifics of the present appeal it is right that I deal at the outset with a question which arose in the course of the hearing as to the proper understanding of the term "totally without merit" in section 2(4)(a) of the 2007 Act. Senior counsel for the respondents advanced argument to the effect not merely that the words provided a low threshold for any claimant (a position with which I did not understand senior counsel for the appellants to disagree), but also that they fell to be understood as importing a notion of abuse of process. As it was put in the written argument, "The complaint should be rejected at this stage only where it is an abuse of the processes for investigation of complaints to allow it to continue". The notion of abuse of process could be said, it was argued, to run through all parts of the language of section 2(4)(a). "Vexatious" proceedings could be said to involve an abuse of the process of the court (Attorney General v Barker [2000] 1 FLR 759, Lord Bingham of Cornhill CJ at page 764). "Frivolous" denoted something trivial, which did not merit consideration. As to "totally without merit", some assistance could be gained from consideration of the English Civil Procedure Rules, by virtue of which the court has power to make civil restraint orders in circumstances where a claimant has made two or more claims that are totally without merit; a measure obviously intended to prevent a party from abusing the court process.

[22] I am not persuaded by this argument. There are two problems with it, one general and one more specific. As to the first, it is always tempting but usually unhelpful to seek to put a gloss on the language of a statute, and I not think it helpful to seek to import notions of "abuse of process" into the clear language of this Act. More specifically, such a concept invariably carries pejorative undertones, and if the respondents' argument was correct, they would have, as senior counsel appeared to accept, no power to reject a complaint which was made in good faith but which was hopelessly misconceived - for example having been made under a genuine but complete misunderstanding of the role and duty of a solicitor, or of an advocate. Such a complaint, so senior counsel appeared to accept, would require nevertheless to be referred to the appellants, who in turn would require to investigate it and report. This, I consider, cannot have been Parliament's intention in enacting section 2(4)(a).

[23] That said, it is entirely clear from the language used, and the context in which it is used, that section 2(4)(a) does indeed provide a complainer with a low threshold to meet to avoid rejection of his or her complaint before investigation, (particularly perhaps in relation to a complaint of "unsatisfactory professional conduct"), and nothing that I say in the course of this opinion should be taken as suggesting anything else.

[24] I record also at this stage that although "professional misconduct" is not defined in the 2007 Act, counsel were agreed that these words have long been understood to have the broad meaning attributed to them by Lord President (Emslie) in Sharp v The Law Society of Scotland 1984 SC 129, where he said, delivering the opinion of the court, at pages 134 and 135:

"There are certain standards of conduct to be expected of competent and reputable solicitors. A departure from these standards which would be regarded by competent and reputable solicitors as serious and reprehensible may properly be categorised as professional misconduct".

[25] Turning to the specifics of the present appeal, it is apparent from the summary of the complaint which has been remitted to the appellants to investigate (and indeed from the complainers' own letter of complaint of 14 August 2009) that the two central elements in it are (1) the aggressive, threatening and intimidating nature of the solicitor's letter of 6 July 2009 and (2) that that letter contained a number of false allegations about what the complainers had done.

[26] As to the first of these, it is not obvious from the respondents' written reasons that they attached any significance to that, whatever the complainers may themselves have thought. In my view that is not at all surprising. The relevant letter was, on the face of it, a letter sent in standard terms by an agent reporting his clients' concerns in relation to certain apparent past and continuing actings, requesting that these actings cease and intimating that, if they did not, legal proceedings could be raised. The context was thus essentially adversarial. The solicitor was representing one party against a prospective opponent in litigation. In these circumstances the language used could only, in my opinion, be regarded as measured. There could be no question of any boundary, whether in terms of intemperate language or inappropriate threat, having been overstepped. Further, it seems clear that the respondents did not attach significance, of itself, to the claim that the complainers were defamed, or indeed to their claimed upset at receipt of the letter. As to the former the letter was, of course, written to the complainers themselves, and while the complainers' upset no doubt explained why they took further action, it could not, of itself, indicate whether the complaint was justified.

[27] As to the second element of the summarised complaint (i.e. that the letter contained a number of false allegations) this, it seems, was at the heart of the respondents' determination. It is apparent, in particular, that the respondents considered that if, on detailed investigation, it was found that the actings attributed to the complainers did not occur, or if they did that the complainers were not involved, this could amount to "unprofessional conduct" (sic). This reasoning appears at the outset of, and seems to run through, paragraph 3.4 of the determination, which was central to the decision. In my opinion it proceeds upon a fundamental misunderstanding of the relevant role and duty of the solicitor in the circumstances in which the letter of 6 July 2009 was written. It is accepted in paragraph 3.5 that the solicitor was acting on his clients' instructions. In the circumstances his duty, acting on those instructions and on information provided by his clients, was to report his clients' concerns. There is no suggestion in the respondents' determination that he did anything other (a matter to which I will revert). In no sense could the solicitor, in these circumstances, be said to warrant, or be personally responsible for, the accuracy of what he was told. Nor could it be said that he had any duty to carry out any independent check or checks as to whether the information he received was true.

[28] Insofar as paragraph 3.4 expresses further concern that the solicitor's letter "does not admit of the possibility that Mr Pryde may have been mistaken", this, it appears to me, proceeds on the same misunderstanding of the agent's duty on behalf of his client in the circumstances. It was a letter written to warn that if certain apparent conduct did not stop legal proceedings could be raised. The same can be said of the claim that the letter gave "no opportunity to Mr and Mrs McIntosh to explain their version of events", not least because it was open to the complainers to respond in any way they chose (as indeed they did). Insofar as the respondents then point out that, when challenged, the solicitor could have "apologised" or restated the position "backed up with evidence", the same misunderstanding of the agent's role in what was essentially an adversarial exchange is further evidenced. It would no doubt have been better if the solicitor had at least formally acknowledged the complainers' letter and indicated that he would take instructions thereon (a matter to which I also return later), but his only obligation in relation to the terms of the previous correspondence was to take his clients' instructions as to how they wished to respond. He had no obligation personally to carry out some kind of investigation in relation to where the truth lay between the competing claims.

[29] On the basis of the reasons which underlay their determination I have therefore reached the view that the respondents did indeed err in law -the determination proceeding on a misunderstanding of the role and duty of the solicitor in the circumstances, and being one which, on the information available, was not reasonably open.

[30] I cannot leave this matter without noticing, however, that in their written Answers (supported, to a degree, in submission by senior counsel) the respondents seek to found on new reasons as to why there could be said to be at least some potential merit in the complaint. As to this, I say two things. First, even if the respondents were now able to found on considerations which did not apply at the time when they made their determination (which, in my opinion, they are not), I consider these considerations to be equally without merit. More significantly, they appear to give rise to more general questions as to the approach of the respondents.

[31] In particular in Answer 5 it is said:

"Explained and averred that the respondents are not required or entitled to investigate the facts or merits of complaints made to them".

Later in the same Answer it is said the respondents "did not carry out further investigation as to the instructions given to Mr Dean that led to the letter being sent". Then, in Answer 6 ,it is said:

"In the absence of investigation the respondents were not able to conclude what instructions had been given to Mr Dean. They were not able to reach a conclusion as to the purpose in writing the letter. As no litigation had been commenced despite the complainers' rejection of the position set out in the letter they were unable to conclude that the letter had clearly been written as a precursor to legal proceedings. They were unable to conclude that instructions had in fact been given to Mr Dean as to the alleged activities of the complainers and to raise legal proceedings without further notice. These were matters that would require investigation before the complaint could be determined. In the absence of investigation of these matters it would not be appropriate to take a decision that the complaint should be subject to no investigation".

[32] There are a number of problems with this apparent approach. First, the nature of the complaint made by the complainers was that the allegations in the letter were inaccurate, not that they were written without instructions or that the solicitor knew that the allegations were untrue. Indeed the complainers' own letter of 28 July spoke of the solicitor being "misinformed". Secondly, and in any event, where the letter plainly bore to have been written on instructions, the respondents have, it appears to me, no basis, other than speculation, for supposing that it was not (nor for supposing, as was at least canvassed in argument, that the solicitor was knowingly engaged in some unfounded attempt merely to intimidate). The warning in the letter was not of inevitable legal action but only of potential action if certain conduct continued. Finally, the Answers, in my opinion, contradict the respondents' own written determination, the respondents at that stage being "satisfied that ADLP were acting on their clients' instructions".

[33] These averments also suggest a very narrow view of the obligations incumbent upon the respondents in terms of section 2(4)(a). This is encapsulated in the statement that the respondents "were not required or entitled to investigate the facts or merits of the complaints made to them". This position was explained to the Court in the course of argument. The respondents have, so we were informed, adopted the view that once a claim has been accepted for registration in terms of the respondents' Rules (Rules of the Scottish Legal Complaints Commission 2009, made under section 32 of the 2007 Act), they have no power or duty to carry out any investigation, even to the extent of asking any further question or questions of the complainer. Reference was made to Rule 4, headed "Making a complaint", and, in particular, to Rule 4(1) which provides that "A complaint is made when it is on an SLCC complaint form registered as received...." and to Rule 4(3)(c) which provides that a complaint "must contain information sufficient to enable the Commission to understand the factual basis upon which the complaint proceeds". We were informed that if a complaint did not satisfy the terms of Rule 4(3)(c), it would not be registered. Although it was accepted that, in practice, the respondents could, in assessing whether to receive and register a complaint, seek some more information from complainers, the respondents were concerned that any further questioning thereafter would be tantamount to (or risk encroaching on) "investigation" of the merits of the complaint, which, in the case of a conduct complaint, was not for them but for the appellants.

[34] I consider this approach to be unjustifiably narrow. It is no doubt perfectly accurate to say that if the respondents are satisfied that a complaint is not vexatious, frivolous or totally without merit they have no duty themselves to "investigate" further (cf. sections 9 and 47). But they do have a duty "to determine whether or not" any complaint is frivolous, vexatious or totally without merit. As expressed this is a matter which requires to be determined. The Act does not, for example, provide that unless they are able to say that a complaint is totally without merit it must be remitted, nor does it provide, as it could have, that it is enough for the respondents to categorise a complaint as a conduct complaint and thereafter leave any assessment to the appellants. The plain intention of the Act is to impose a duty on the respondents to sift out, at a preliminary stage, wholly unmeritorious claims. This is an important duty, for a number of reasons. In the first place, although the primary interest which the Act seeks to protect is, no doubt, the public interest, it is not obvious that there is any public interest in the investigation, and reporting, of complaints which are wholly without merit, nor is that obviously in the interests of any complainer. Secondly, as was agreed before us, it is plain in terms of section 47 of the Act that once a complaint is remitted to them the appellants must investigate it and thereafter make a written report thereon. No sifting role, or power to deal with a complaint summarily, is afforded to the appellants. There is thus an obvious advantage if the appellants are not put to the time and expense of investigating unmeritorious claims. I recognise, however, that this consideration should not be overstated. Senior counsel for the respondents rightly argued (and it was accepted on behalf of the appellants) that how the appellants' investigate any complaint is essentially a matter for them, and the extent of investigation required will vary from case to case. Further, an accepted complaint alleging professional misconduct or unsatisfactory professional conduct is necessarily a significant matter for any solicitor who is the subject of such a complaint. The fact that such a complaint is pending, regardless of eventual outcome, will require to be disclosed in a wide variety of situations, including tenders in the public sector and applications for appointments etc, and the existence, and investigation thereof, is likely to be productive of stress in any case.

[35] How the respondents perform this important preliminary sifting duty will no doubt depend on the facts of any case, and will vary from case to case. In these circumstances it would be inappropriate, in this appeal, to attempt to give any detailed guidance. It does, however, appear to me that the respondents will require in every case to obtain at least basic information as to the basis upon which the complaint is being made. To take an example suggested by the appellants - if the respondents receive a complaint that solicitor A is a thief, the respondents would, it seems, at least have to ask upon what basis that allegation is being made before they could assess whether there was any merit in it. If, for example, on questioning, the complainer was to answer that it was because solicitor A had red hair, the lack of merit of the complaint would be obvious. Senior counsel submitted that such a vague complaint would not, initially, be accepted for registration under the Rules, and that its apparent inadequate basis would be likely to be discovered then, but it is not clear why it is accepted that questions can be asked at that stage under the Rules but not later, even if necessary to fulfil the respondents' duty under section 2(4)(a). To illustrate this further it was, I understood, accepted in the course of senior counsel's submissions that if a more detailed claim was made, for example that solicitor A stole such and such an item on a particular day, it would be likely to pass the test for registration. This, however, would still leave open the question as to the basis upon which, if any, that allegation was being advanced.

[36] Further, section 17 of the 2007 Act gives the respondents power to examine documents and demand explanations in connection with conduct or services complaints where "the Commission is satisfied that it is necessary for it to do so" for the purposes inter alia of section 2. This, I consider, is wholly inconsistent with their current approach. So too are the terms of the letter which the respondents wrote to the complainers on 17 September 2009 - albeit we were informed that a letter in such terms would not now in practice be drafted.

[37] Thus, to return to the circumstances of the present appeal, if the complaint had been that the letter was written without instructions, it would, I consider, have been right for the respondents to ask the basis for that concern. As I have already observed, however, this was not, on the face of it, the complaint which the respondents received.

[38] Despite these comments it is only fair to record that we were informed that in the period from 1 October 2008 to 25 May 2010 one hundred and eleven claims have been rejected by the respondents on the basis that they were vexatious, frivolous or totally without merit, constituting 22.1% of cases that otherwise met the eligibility criteria.

[39] In their Answers the respondents also say this:

"In the circumstances the respondents attached significance to the failure of Mr Dean to respond to the letters from the complainers sent in response to his initial letter. The complainers' letter of 28 July set out in some detail the basis on which the complainers considered that the facts were mis-stated. It sought further information to enable the complainers to understand the allegations and threats directed to them. It noted that there was no fencing in place identifying construction sites. Notwithstanding the contents of this letter, no further information was provided by Mr Dean to the complainers, no acknowledgement was given of where the factual position had been misstated and the threat of legal proceedings was not lifted. A refusal by a solicitor to respond to a letter from another solicitor is capable of amounting to professional misconduct. Had the letter of response from the complainers dated 28 July 2009 been written by a solicitor the refusal of Mr Dean to respond to it would be relevant for investigation by the Applicants".

[40] With these averments the respondents report, it seems, that they have at least considered whether the fact that the complainers' letters were not answered could, of itself, be the subject of complaint. They appear to conclude nonetheless, that this would only be relevant in other circumstances (namely where there was "a refusal by a solicitor to respond to a letter from another solicitor").

[41] This matter has given me perhaps most pause for thought. Nevertheless, although I myself could understand that a failure by a solicitor, in circumstances such as those which pertained, to acknowledge receipt of correspondence, could be the subject of concern (at least in relation to the question of possible unsatisfactory professional conduct), this, it seems, was not, in this case, the subject of the complaint. That is not to say that an over-technical view should be taken of what a complaint comprises, or that a complaint should be judged solely on the basis of the initial statement by the complainer. I can readily envisage circumstances in which a complaint could, particularly after clarification, reasonably be said to give rise to wider concerns than those first mentioned. In this case, however, not only did the complainers not found on this aspect in their letter of complaint dated 14 August 2009 (which, it has to be said in any event, was written only a short time after their first letter to the solicitor), nor did they do so in the later agreed summary. More importantly, on a fair reading of the reasons for the respondents' determination, the focus was not on the absence of acknowledgement but on the fact that the solicitor did not apologise or provide further evidence - a very different matter. Nor, significantly, was there reference to the absence of acknowledgement in the complaint which was, as summarised, remitted for investigation by the appellants, in the letter of 11 November 2009. I would only add that although in the Answers there is reference to the solicitor's "refusal" to respond, it is not clear that the respondents had any information other than that the solicitor had not in fact responded in the short time available at the beginning of August before the complaint against him was made.

[42] For the avoidance of doubt I record that although in their written Appeal the appellants seek to suggest that the complaint is vexatious, and also that the respondents' determination of it was irrational, in that they had rejected a complaint by a third party arising out of an almost identical letter written on 6 July 2009 by the same solicitor on behalf of the same clients, no argument was advanced in support of these contentions.

[43] In all the circumstances I move your Lordships to allow this appeal, and to substitute for the decision of the respondents our decision that the relevant complaint is totally without merit.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kingarth Lord Reed Lord Malcolm	[2010] CSIH 79 XA183/09 OPINION OF LORD REED in the appeal by THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND Appellant; against THE SCOTTISH LEGAL COMPLAINTS COMMISSION Respondents: _______

Act: R W J Anderson, Q.C., J A Brown; Balfour + Manson LLP

Alt: Lake, Q.C.; Shepherd & Wedderburn

21 September 2010

[44] I agree that this appeal should be disposed of as your Lordship proposes, for the reasons given by your Lordship. I am, with respect, unable to agree with the reasoning of Lord Malcolm in so far as it differs from that of your Lordship. In particular, I am unable to accept that the "complaint", within the meaning of the Act, is not confined to the matters in respect of which the complainer has expressed dissatisfaction, and that the respondents are therefore not confined to a consideration of those matters when determining the question which arises under section 2(4).

[45] Section 2(4) applies in the circumstances defined by section 2(1): that is to say (and reading short paragraphs (a) and (b)), where the respondents receive a complaint suggesting professional misconduct, unsatisfactory professional conduct or inadequate professional services. The term "complaint" is defined by section 46 as including any expression of dissatisfaction. The question to be determined under section 2(4) is whether or not the complaint - that is to say, the complaint received by the respondents - is frivolous, vexatious or totally without merit. I can only read this as meaning that the respondents have to consider the complaint - that is to say, the complainer's expression of dissatisfaction - and decide whether or not it is frivolous, vexatious or totally without merit. In doing so, the respondents may take account of any documents or explanation which they may have obtained by exercising their powers under section 17. They cannot however, as it appears to me, consider matters which might have, but did not in fact, give rise to any expression of dissatisfaction by the complainer. If the respondents were to do so, they would no longer be considering the complaint which they actually received.

[46] That appears to me to be not only consistent with the terms of section 2, but also supported by other relevant provisions. In particular, if a complaint is not rejected as frivolous, vexatious or totally without merit, it must be dealt with. The manner in which it is dealt with depends upon its categorisation as a conduct complaint or a services complaint, in accordance with section 5. The definitions of the expressions "conduct complaint" and "services complaint", set out in section 2(1), relate to the nature of the complaint received by the respondents (something which is also reflected in the heading of section 5). The focus is thus on the nature of the grievance expressed by the complainer, rather than on the nature of potential grievances which have never been expressed. This makes sense only if section 2(4) is focused upon the same matter. If the complaint is a conduct complaint, section 6 requires the respondents to remit the complaint to the relevant professional organisation to deal with. What has to be dealt with, therefore, is the complaint which the respondents actually received: not some other potential complaint which the respondents consider might have been made.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kingarth Lord Reed Lord Malcolm	[2010] CSIH 79 XA183/09 OPINION OF LORD MALCOLM in the appeal by THE COUNCIL OF THE LAW SOCIETY OF SCOTLAND Appellants; against THE SCOTTISH LEGAL COMPLAINTS COMMISSION Respondents: _______

Act: R W J Anderson, Q.C., J A Brown; Balfour + Manson LLP

Alt: Lake, Q.C.; Shepherd & Wedderburn

21 September 2010

[47] I gratefully adopt the summary of the factual background and of the relevant provisions in the Legal Profession and Legal Aid (Scotland) Act 2007, all as set out in the opinion of your Lordship in the chair. The appellants' concern is that in general the respondents are too reluctant to consider the merits (or demerits) of a complaint when assessing whether it is or is not "totally without merit" for the purpose of deciding whether to refer it to the professional body for investigation and determination. On the other hand the respondents stress that the public interest in the proper regulation of the profession demands that it should be alerted to any circumstances where there might be professional misconduct or unsatisfactory professional conduct. The present case has been selected from a number of appeals which raise similar issues. I begin with some very general observations which have guided my approach to this case. Since in an appeal under the Act the court has power to substitute its own decision, I will discuss the merits of the case to a greater extent than would be usual in traditional applications for judicial review.

General Observations

[48] Parliament has decided that, notwithstanding the creation of the Scottish Legal Complaints Commission ("the Commission"), the relevant professional body (in this case the Law Society of Scotland) should remain responsible for the investigation and determination of a conduct complaint. This suggests that when considering whether or not a complaint is "frivolous, vexatious or totally without merit" in terms of section 2(4) of the 2007 Act, any inquires carried out by the Commission should be no more than is required to allow it to answer that question. Were it otherwise, there would be a risk of duplication of effort, unnecessary delay, complexity and confusion. The Commission might be drawn into an investigation and consideration of the merits of a complaint, something which is specifically the responsibility of the Society. It was plain from the discussion at the hearing on the appeal that the Commission is anxious to avoid usurping the exclusive jurisdiction of the professional body to police conduct issues.

[49] A flavour of the correct approach to the phrase "totally without merit" can be gained from the link with "frivolous" and "vexatious" complaints. In my view, the test of "totally without merit" is different from a test of "without merit". The latter would require consideration of the substance of the matter, allied to any necessary investigation. The statutory formula does not require this. It allows the sifting of complaints which, on their face, are obviously unworthy of any consideration or investigation by the professional body. It covers hopeless complaints where it is clear that further inquiries could make no difference. A conclusion that a complaint is unlikely to succeed would not meet the test for dismissal by the Commission at the preliminary stage. ("Succeed" may not be the correct word since it connotes a dispute or adversarial process akin to litigation, whereas for a professional body the fundamental purpose of a complaints system is to facilitate its duty to protect the public and to promote proper professional standards). The hurdle set by the phrase "totally without merit" is very low. While not exact, the nearest equivalent which occurs to me is the "clearly unfounded" test for certification of an asylum claim under section 94 of the Nationality, Immigration and Asylum Act 2002, around which there is a developed jurisprudence. It stresses that certification should be granted only if it is absolutely clear that, if put before an immigration judge, the claim would be bound to fail. Anything more than a fanciful prospect of success, perhaps after and depending upon the outcome of appropriate investigations, would prohibit certification: see A K (Sri Lanka)
[2009]

EWCA [Civ] 447.

[50] Contrary to a submission made by counsel for the Commission, for rejection of a complaint as totally without merit under section 2(4) it is not necessary that it be identified as an abuse of process. That submission is based on an unwarranted gloss on the statutory wording. A complaint may be totally without merit, yet not an abuse of the process. An example is given later in this opinion.

[51] The creation of the Commission and its "single gateway" role was, at least in part, prompted by a concern that the previous regime was "run by lawyers for the benefit of lawyers". Such perceptions were damaging to the standing of the profession. The policy was "to build public confidence in the system for handling complaints against lawyers" by instituting procedures which "put the users of legal services at the heart of regulatory arrangements" (paragraphs 6 and 26 of the Policy Memorandum relating to the Legal Profession and Legal Aid (Scotland) Act Bill). Thus the Act set up a body independent of the profession which, amongst other things, would decide whether the relevant professional body should be required to investigate a complaint. Previously the Justice 1 Committee of the Scottish Parliament had offered the view that such a system "could reassure the public that complaints could not be unfairly rejected as invalid by the professional bodies", there having been expressions of concern that they were too quick to find reasons for declaring a complaint to be ineligible (paragraph 5.8 of the Report "Reforming Complaint Handling, Building Consumer Confidence" May 2005).

[52] This background suggests that, when dealing with complaints, the Commission (and the relevant professional body) should try to keep in mind how things might appear to a lay person. Whatever the outcome, it should try to resolve complaints in a manner which avoids a feeling on the part of complainers that their concerns have been swept under the carpet. This indicates that a complaint should be rejected by the Commission as being "totally without merit" only in a clear and unambiguous case. One approach would be to ask whether a sensible person could think that there may be something to be gained from a referral to the professional body.

[53] There may be cases which, though not focused by the complainer, raise topics of general concern or interest, which the professional body might consider to be of value or significance from the point of view of reviewing and perhaps improving standards and general practice. Proper professional conduct is not set in stone. The present case might prompt the Society to reflect on what is to be expected of a solicitor who is instructed to write a letter directly to lay people threatening court action on the basis of alleged wrongdoing. For example, guidance might be given that solicitors should make it clear that they cannot and do not associate themselves with the allegations, but are simply acting on the instructions of and on the basis of information provided by their client. While lawyers may understand all this, lay people may not. If the allegations are unwarranted, the recipients may consider that they are being bullied and intimidated by a professional person. For many people, a letter in such terms from a solicitor will be an unusual and worrying thing. In most people's eyes it will have a special status. Furthermore, language which appears normal and measured to a lawyer may well come across quite differently to a lay person. The court was informed that throughout the whole process the solicitor made no response to either the complainers or the Commission. In these circumstances the Society may wish to consider whether it is satisfactory for the solicitor to ignore rebuttal letters, especially if in the meantime he neither raises the threatened court proceedings nor says anything further on the subject, thereby leaving the people concerned in a state of uninformed limbo.

[54] In summary, if a complaint raises issues which may be of general interest to the professional body with responsibility for reviewing conduct and standards, I would not expect it to be rejected by the Commission under section 2(4). The contrary approach would involve an overly restrictive concept of the term "merit". All of this follows if it is understood that such a complaint is not analogous to an adversarial dispute, nor to a summons in a litigation. A summons necessarily imports notions of onus, specification and relevancy, but in my view it would be wrong to translate similar concepts to the present context.

[55] During the hearing there was some discussion as to whether, for the purposes of section 2(4), "the complaint" should be restricted to the specific concerns focused by the complainer. Given the wider public interest issues involved, I would not expect the professional body to consider itself so constrained if it identified other matters deserving of its attention. I would not expect a complaint to be dismissed as being wholly without merit simply because, for whatever reason, the complainer had not articulated a matter which deserves investigation. Typically complainers will not be lawyers. I see no reason to adopt a different interpretation of the provisions of the Act, including section 2(4). Thus, in my view, the Commission should not adopt a narrow view restricted to the specific concern or concerns as expressed by the complainer. Rather it should decide the preliminary issue on the basis of the whole circumstances arising from and relating to the complaint. The same will apply if the court is considering whether to exercise its powers under section 22 of the Act to substitute its decision for that of the Commission.

[56] The 2007 Act expressly allows for complaints of "unsatisfactory professional conduct", a much broader, easier to establish concept than the more serious matter of professional misconduct. When considering its task under section 2(4), the Commission should ask itself whether there is any possibility that the relevant professional body would consider that the complaint merits consideration, with or without further inquiries. In other words, and putting the matter colloquially, "might there be something in it?". If the answer is "possibly yes", the hurdle is cleared and the Commission must refer the complaint to the professional body. An example discussed at the hearing where the answer to this question would be "clearly no", concerned a complainer criticising his advocate for referring the judge to a recent Supreme Court authority adverse to his client's interests, which had been overlooked by his opponent's counsel. It is wholly understandable that this might irritate the client, and leave him feeling aggrieved. Such a complaint could not be described as frivolous, vexatious or an abuse of process. However, it is beyond doubt that counsel was simply fulfilling his duty to the court and no amount of further investigation could alter that fact. This would be an example of a complaint which was totally without merit within the meaning of section 2(4).

[57] Where the Commission is of the view that further investigation is needed, it does not follow that the Commission must carry out that investigation before it can determine the section 2(4) issues. On the contrary, a need for investigation is likely to demonstrate that the complaint is not totally without merit. This remains so even if the likelihood is that further investigation will exonerate the solicitor. In my view, the phrase "whether or not" in section 2(4) does not compel the Commission to resolve any uncertainties. In a case where further investigation might be relevant, it is the professional body, not the Commission, that should undertake that investigation.

Contrary to what might be deduced from certain submissions made on behalf of the Society, it is important that when considering its task under section 2(4) the Commission does not reach conclusions as to what the outcome of such investigations might be, for example because of assumptions that the solicitor will not have acted improperly. The dangers of such an approach are obvious. Equally, neither the professional body nor the practitioner should be offended or disturbed by a decision by the Commission to refer, since this involves no judgment on the merits of the complaint.

[58] In the grounds of appeal the Society emphasises the stress and other difficulties which a complaint can cause for a solicitor. No doubt an investigation by one's professional body can be stressful and unwelcome, but there are powerful public interest considerations lying behind Parliament's decision that conduct complaints should be fully and properly considered by other members of the profession. The emphasis should be on protection of the public and safeguarding the reputation of the profession: see Graham v Nursing and Midwifery Council 2008 SC 659 (Extra Division) at paragraph 13.

[59] Notwithstanding all of the above, I am of the view that counsel for the Commission was wrong when he appeared to suggest that once a complaint is lodged the Commission can ask no further questions of the complainer. That submission is contradicted by the terms of section 17 of the Act. Even without that provision, I would have concluded that the Commission has an implied power to seek clarification of the complaint or the factual basis for it, though, as indicated earlier, any such inquiries ("investigation" is perhaps the wrong word) should be no more than is necessary to allow the Commission to decide the preliminary issue under section 2(4). With regard to the hypothetical example proffered by counsel for the Society during the hearing, if a complainer says only that X is a thief, there is nothing to stop the Commission from asking "why do you say that?". If the answer is because X is a red head and all red heads are thieves, then clearly the complaint should be dismissed as frivolous, vexatious or totally without merit, or perhaps all three.

The Present Appeal

[60] Turning now to the circumstances of the present appeal, when considering whether the complaint is or is not totally without merit, I would expect the Commission to have in mind two matters. Firstly, that it is possible that the allegations in the letter sent to Mr and Mrs McIntosh are wholly inaccurate, and that it might be understood by them as the solicitor asserting that the allegations are true, particularly having regard to the terms of the first, second, sixth and penultimate paragraphs. Secondly, that it is at least possible that the Society would take the view that a solicitor should appreciate that the recipients might be alarmed and distressed on receiving such a letter from a solicitor. I have in mind the statement that "if there is a repeat of your accessing the land in question, our client has instructed us to raise court proceedings, in the form of an interdict action, without further notice", allied to the reference on the next page to a report of malicious damage to the police. Given the terms of the reply from Mr and Mrs McIntosh to the solicitor, the view may be taken that he should have appreciated that if he failed to reply to that letter, then they may be left in a state of worry and uncertainty. Further, and especially should the true facts be as asserted by them, absent any response to their letters, and with no court proceedings being raised, they may be left with the overall impression that there was never any real intention to bring the matter to court, and that a solicitor's letter was simply being used to bully and intimidate them. It was common ground at the hearing that it would be at least unsatisfactory conduct for a solicitor knowingly to participate in such an exercise. In these circumstances the complainers might expect the Society to at least check that the solicitor was not privy to or party to any such objective. In my view the issue is not whether the solicitor had instructions, but what those instructions were. An outright rejection of their concerns by the Commission without any consideration by the professional body may well leave the complainers with the impression that their concerns had not been addressed.

[61] None of this involves any assertion on my part that there has been unsatisfactory or improper conduct on the part of the solicitors. However, in the overall circumstances, I agree with the Commission's decision that the complaint should not be dismissed at this stage. Such a decision is wholly neutral as to the proper disposal of the complaint. If the matter was referred to the Society, it would remain open to it to conclude that on no view of the facts has the solicitor transgressed any rule or fallen below a satisfactory standard of conduct. Further, a referral does not oblige the professional body to any course of action other than to apply its mind to the complaint, carry out such inquiries, if any, as it thinks fit, and reach a reasoned decision on the complaint. I do not interpret section 47 of the Act as imposing an elaborate procedure where none is required. However, at a minimum, one result of a referral might be some consideration as to whether a solicitor should make it clear in letters such as that sent to Mr and Mrs McIntosh that he is simply acting on the basis of information provided to him, and, when a detailed response is received, that the threat of interdict proceedings should not be left hanging in the air. At the hearing, counsel for the Society indicated that a solicitor would be expected to respond to a letter from another solicitor. Without some explanation from the Society, members of the public are unlikely to understand why a lay person is not entitled to the same courtesy.

[62] The Society's grounds of appeal suggest that a solicitor can never be expected to do more than proceed on the basis of a state of facts presented to him by his client when writing a letter alleging wrongdoing. (A contrast is drawn with the obligations on a solicitor when drafting court pleadings). I am reluctant to endorse that as an absolute rule in all circumstances, and it can be noted that the letter did threaten interdict proceedings without further notice. I do not interpret the complaint as an allegation that the solicitor should have, in effect, warranted that the stated facts were true before writing the letter. Plainly that would be impracticable and beyond any reasonable requirements on a solicitor asked to write such a letter. Also, I am not suggesting that after receipt of the letter from Mr and Mrs McIntosh the solicitor was then obliged to adjudicate on the dispute. However, I would disagree with any proposition that, whatever the circumstances, a solicitor's obligations begin and end with his duties to his client, fellow professionals and the court. There is no such limitation in the phrase "unsatisfactory professional conduct" which, in broad terms, is defined in section 46 of the Act as covering sub‑standard professional conduct. Obviously from time to time lawyers cannot avoid writing letters which will cause upset, but equally I do not agree with counsel for the Society's submission that, when considering a complaint of this nature, the likely effect of the letter on its recipients must always be treated as wholly irrelevant.

[63] At least some of the above considerations were in the mind of the author of the Commission's document headed "Determination under section 2(4)". Writing in November 2009 he observed that there had been "no response of any kind received by Mr and Mrs McIntosh to their letter of 28 June 2009". He also noted that the solicitors had made no response to a second letter of 14 August, which was sent on the advice of the Commission. From the terms of paragraph 3.4 of that document it is plain that there was a concern that the terms of the solicitor's letter were too assertive as to the accuracy of the information being supplied to the solicitors, and "gave no opportunity to Mr and Mrs McIntosh to explain their version of events". For myself I see no defect in the reasoning contained in the determination when, as the author clearly stated, the only question was whether the complaint was or was not totally without merit. For the reasons explained above I also have no difficulty in following the potential relevance of the solicitor's failure to respond in any shape or form to the letters of 28 June and 14 August.

[64] I detect no error of law in the Commission's approach. Even if, as indicated in the opinion of your Lordship in the chair, there was an element of misunderstanding in the author's mind as to the proper role and duty of a solicitor in these circumstances, nonetheless, for the reasons given earlier, it would not cause me to regard the decision itself as vitiated, nor to substitute a different one. In the whole circumstances, I regret that I find myself unable to agree with your Lordships. I would refuse the appeal.